Time to Reform the Dewan Negara?

Karpal Singh has recently suggested that the Dewan Negara (Senate) be abolished because, in his view, it did not serve any purpose other than to allow unelected persons, including those who have been rejected by voters at the general election, to be brought in as ministers and parliamentarians. He appears since to have altered his position and put forward an alternative proposal that Parliament pass a law under Article 45(4)(b) of the Constitution to allow direct elections of senators representing the States.

The Senate was originally conceived as a house that would represent the States, as opposed to the Dewan Rakyat (House of Representatives), which represents the people. In the USA, the Senate consists of 100 senators, two from each State, regardless of whether the State is as large as California or as small as Rhode Island. In contrast, the number of representatives for each State in the House of Representatives is based on the number of voters. Originally elected by the State legislatures, US senators became directly elected by the voters of each State in 1913 with the adoption of the Seventeenth Amendment.

In Australia, the Senate consists of 72 senators, twelve from each State, who have always been directly elected. In both the USA and Australia, senators serve 6-year terms (as opposed to members of the House of Representatives – 3 and 4 years respectively), as the upper house is seen as the more permanent, dignified chamber of the legislature.

In Malaya, the Merdeka Constitution originally provided for each State legislature to elect two senators, giving 22 for the 11 States. In addition, 16 senators were appointed by the Yang di-Pertuan Agong. The majority of senators (nearly 60%) were therefore elected by the States. It was envisaged by the drafters of the Constitution that the Senate could or should eventually consist entirely of directly elected senators, as in the USA and Australia. Article 45(4) therefore empowers Parliament to: (a) increase the number of senators to three per State, (b) cause senators to be directly elected by the voters of each State, and (c) reduce the number of or abolish altogether the appointed senators.

Since 1957, instead of reducing the number of appointed senators, Parliament has by constitutional amendments gradually increased the number of appointed senators: in 1963, with 28 State senators, the number of appointed senators was increased to 22. This number was increased again to 32 in 1964, and then to 42 in 1978 (including two for the Federal Territory of Kuala Lumpur). One senator was added for each for the Federal Territories of Labuan and Putrajaya in 1984 and 2001, giving us today 26 indirectly elected State senators and 44 appointed senators.

It's getting crowded | Source: http://bit.ly/15dmD5e

With over 60% of senators now appointed by the Federal Government, the role of the Senate as the house of the States has therefore gone out the window. The original 6-year term has been halved to 3 years, with a limit of two terms per senator: note that there is no corresponding term limit for MPs or ministers.

The obvious solution to solving the non-representativeness of the Senate is to pass a law fully implementing Article 45(4) of the Constitution. This would give us 39 directly elected senators from the States. The 4 appointed senators for the Federal Territories could either be retained, reduced or abolished.

If there is agreement to amend the Constitution, serious consideration should also be given to giving each Menteri Besar or Chief Minister (or in his absence, his deputy) a permanent ex-officio seat in, and the right to participate in proceedings of, the Senate, in the same way that Federal ministers may participate in the proceedings of both houses of Parliament. (Following the precedent of Federal ministers, the right to participate in proceedings of another house would not, however, include a right to vote.)

The inclusion of Menteri Besars and Chief Ministers in the Senate was first proposed by Their Highnesses the Malay Rulers in their submissions to the Reid Commission, and was again recommended by Justice Harun Hashim in 1987, on the grounds that the heads of the State Governments were best placed to articulate their State’s views on legislation that would affect the State. This is similar to the practice in Germany, where the Minister-President of each German Land (State) heads the State Government’s delegation in the Bundesrat (the German senate).

Finally, the term of office of senators should be restored to 6 years (with half expiring every 3 years), and the term limits abolished in order to enable senators to build up legislative experience and expertise, as MPs are able to do in the lower house of Parliament.